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2016 DIGILAW 98 (ORI)

Chandramani Kumbhar v. State of Orissa

2016-02-03

S.K.SAHOO

body2016
JUDGMENT S. K. SAHOO, J. - The appellant Chandramani Kumbhar faced trial in the Court of learned Additional Sessions Judge (FTC), Bolangir in S.C. Case No.87/6/7 of 2005-06 for offences punishable under Sections 498-A, 304-B and 306 of the Indian Penal Code read with Section 4 of the Dowry Prohibition Act, 1961. The learned Trial Court vide impugned judgment and order dated 30.04.2007 acquitted the appellant of the charge under Section 306 of the Indian Penal Code. However, the appellant was found to be guilty of the offences punishable under Sections 498-A and 304-B of Indian Penal Code read with Section 4 of the Dowry Prohibition Act and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/-, (rupees ten thousand), in default, to undergo further rigorous imprisonment for six months for the offence under Section 304-B of the Indian Penal Code but no separate sentences were passed for the offences under Section 498-A of the Indian Penal Code and Section 4 of the D.P. Act. 2. The prosecution case as per the First Information Report lodged by Gayadhar Bag (P.W.3) on 19.04.2005 before the Officer-in-charge, Tusura Police Station is that the marriage between his eldest daughter Daupadi @ Madhuri (hereafter the ‘deceased’) and the appellant was solemnized on 28.03.2005 in accordance with their caste and customs and since the date of marriage, the deceased was subjected to physical and mental torture in connection with the demand of dowry. Though the demand of different articles were fulfilled but the appellant insisted for a Hercules cycle in place of Hero Jet cycle and he also complained that the gold ornaments which were given at the time of marriage were made of brass. It is further stated in the First Information Report that for non-fulfillment of demand of dowry, the appellant administered poison to the deceased. The brother of the appellant namely Chandrasekhar Kumbhar informed at the house of the informant about the death of the deceased and hearing such news, the mother of the deceased along with others came to the house of the appellant and found that the deceased was lying dead. The incident stated to have taken place during the intervening night of 18/19.04.2005. 3. The incident stated to have taken place during the intervening night of 18/19.04.2005. 3. P.W.9 Subodha Kumar Mallik, who was the Officer in-charge of Tusura Police Station, on receipt of the written report from P.W.3 registered Tusura P.S. Case No.55 dated 19.04.2005 under Sections 498-A/302/304-B of the Indian Penal Code read with Section 4 of D.P. Act and took up investigation of the case. During course of investigation, he examined the informant and seized marriage invitation card and copy of dowry articles list on being produced by the informant under seizure list Ext.2. On 20.04.2005, the Investigating Officer made requisition to the Tahasildar, Tusura for deputation of one Executive Magistrate for conducting inquest over the dead body. P.W.9 visited the spot which is the dwelling house of the appellant and prepared spot map Ext.12. He conducted inquest over the dead body in presence of the Executive Magistrate and prepared inquest report Ext.5. He sent the dead body for postmortem examination. P.W.5 Dr. Manorama Satpathy who was the Assistant Surgeon attached to D.H. Hospital, Bolangir conducted post mortem examination on 20.04.2005 on police requisition and submitted her report Ext.7. She also gave reply to the query made by the Investigating Officer as per her report Ext.8. The Investigating Officer seized the wearing apparels of the deceased in presence of the witnesses vide seizure list Ext.9/1. On 21.04.2005 the I.O. arrested the appellant and the dowry articles were seized under seizure list Ext.10 in presence of the witnesses and the same was given in the zima of the informant vide Zimanama Ext.6. After completion of investigation, charge sheet was submitted on 19.04.2005 under Sections 498-A/306/304-B of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. 4. After submission of charge-sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the charge was framed by the learned Trial Court on 19th December, 2006 under Sections 498- A/304-B/306 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act and since the appellant refuted the charge, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt. 5. During course of trial, in order to prove its case, the prosecution examined as many as nine witnesses. 5. During course of trial, in order to prove its case, the prosecution examined as many as nine witnesses. P.W.1 Prasanna Bag stated that at the time of marriage, the father of the deceased had given cycle, watch, utensils and other household articles to the appellant. He did not support the prosecution case, for which he was declared hostile. P.W.2 Sankar Bag who is the cousin brother of the deceased stated about the demand of dowry by the appellant and also stated that within twenty one days of marriage, the deceased died. P.W.3 Gayadhar Bag is the father of the deceased and he is the informant in this case and he stated about the demand of dowry and torture on the deceased due to nonfulfillment of demand of dowry and also stated that the appellant committed murder of his deceased daughter. He is also a witness to the seizure of dowry articles as well as inquest. P.W.4 Tapisa Bag is the mother of the deceased and she stated about the disclosure made by her deceased daughter before her regarding the demand of television set, tape recorder and also torture made by the appellant and his mother for nonfulfillment of the dowry demand. She stated that on getting information from Chandrasekhar, the brother of the appellant, she proceeded to the house of the appellant and found the deceased lying in an unconscious state and froth was coming out from her mouth. P.W.5 Dr. Manorama Satpathy was the Assistant Surgeon attached to District Headquarters Hospital, Bolangir and she conducted post mortem over the dead body and she also answered to the query made by the Investigating Officer vide Ext.8. P.W.6 Mangalu Suna is the scribe of the FIR and he did not support the prosecution case, for which he was declared hostile. P.W.7 Bisi Sagar did not support the prosecution case, for which he was declared hostile. P.W.8 Kumati Bag stated about the seizure of dowry articles from the house of the appellant under seizure list Ext.10. P.W.9 Subodh Kumar Mallik is the Investigating Officer. The prosecution exhibited thirteen documents. P.W.7 Bisi Sagar did not support the prosecution case, for which he was declared hostile. P.W.8 Kumati Bag stated about the seizure of dowry articles from the house of the appellant under seizure list Ext.10. P.W.9 Subodh Kumar Mallik is the Investigating Officer. The prosecution exhibited thirteen documents. Ext.1 is the written report, Ext.2 is the seizure list, Ext.3 is the marriage invitation card, Ext.4 is the list of articles given to the appellant at the time of marriage, Ext.5 is the inquest report, Ext.6 is the Zimanama, Ext.7 is the post mortem report, Ext.8 is the query report, Ext.9/1 is the seizure list of the wearing apparels of the deceased, Ext.10 is the seizure list, Ext.11 is the list of dowry articles, Ext.12 is the spot map and Ext.13 is the dead body challan. 6. The defence plea of the appellant was one of denial and it was pleaded that the family members of the deceased had proposed to give her marriage to one Mangulu but since the deceased married the appellant due to their previous love affair, the case has been foisted. No witness was examined on behalf of the defence. 7. The learned Trial Court has been pleased to hold that in view of the facts that the marriage of the deceased was held on 30.03.2005 and her death was on 18.04.2005, it is crystal clear that soon before her death, she was subjected to cruelty, humiliation and harassment by the accused. The learned Trial Court further held that there is a close proximity/live link between the demand of dowry oriented torture and death as both the occurrence occurred within 21 days of the marriage. The learned Trial Court further held that in view of the unshaken testimony of P.Ws. 3 and 4, there is no doubt to come to a conclusion that all the ingredients necessary to constitute a dowry death have been proved in this case against the appellant beyond all reasonable doubt and there is no impediment to take the presumption against the appellant under Section 113-B of the Evidence Act. 3 and 4, there is no doubt to come to a conclusion that all the ingredients necessary to constitute a dowry death have been proved in this case against the appellant beyond all reasonable doubt and there is no impediment to take the presumption against the appellant under Section 113-B of the Evidence Act. The Trial Court further held that the inevitable conclusion would be that the appellant is the author of the crime and the prosecution by clear, cogent and trustworthy evidence has proved that the appellant caused the death of the deceased by subjecting her to cruelty for non-fulfillment of demand of dowry, for which he found the appellant guilty for the offences under Sections 498-A and 304-B of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. 8. Mr. Tutu Pradhan, learned counsel appearing for the appellant submitted that two witnesses who have stated about the demand of dowry and torture on the deceased are none else but the parents of the deceased who are highly interested witnesses and therefore it was not proper on the part of the learned Trial Court to accept such evidence to convict the appellant. The learned counsel for the appellant further urged that even though the informant has stated that right from day one of marriage, there was consistent demand of dowry and physical and mental torture on the deceased for non-fulfillment of demand of dowry but he had never disclosed before anybody or reported anywhere which creates suspicion about his version. He further submitted that since the chemical examination report has not been proved in this case, the version of the doctor that it is a case of poisoning is doubtful. Mrs. Saswata Patnaik, learned Additional Government Advocate on the other hand submitted that in a case of this nature, the family members are the best witnesses inasmuch as the deceased can only repose confidence on them and disclose about the mental and physical torture on her by her in-laws and there was no infirmity in the findings of the learned Trial Court to accept such version to come to the conclusion that the appellant was indulged in physical and mental torture on the deceased. The learned State counsel further urged that the demand of dowry has been clearly proved in this case so also the torture and in view of the presumption available under Section 113-B of the Evidence Act, since the death took place within 21 days of the marriage and it was an unnatural death and it has been proved that soon before the death of the deceased, she was subjected to torture in connection with demand of dowry and the appellant has failed to rebut the presumption, he has been rightly held guilty by the learned Trial Court. The learned State Counsel further submitted that the doctor has categorically stated that the smell that was emitting from the abdomen as well as from the symptoms of the body, it appeared that it was a case of poisoning and therefore merely because the chemical examination has not been proved in this case, the case of the prosecution that the deceased died on account of poisoning cannot be disbelieved. 9. Considering the submissions made by the respective parties, there is no dispute that the marriage between the appellant and the deceased was solemnized on 28.03.2015 and the death took place on 18.04.2015 which is about three weeks from the date of marriage. The ingredients of the offence under Section 304-B of the Indian Penal Code requires that the prosecution has to prove that:- (i) the death of a woman has been caused either by burns or bodily injury or occured otherwise than under normal circumstances; (ii) Such death has occurred within seven years of marriage; (iii) Soon before the death, the woman was subjected to cruelty or harassment by her husband or any relative of her husband; (iv) Such cruelty or harassment was in connection with demand of Dowry. Section 113-B of the Evidence Act raises a mandatory presumption that if it is shown that soon before the death of a woman, she was subjected to cruelty or harassment by any person for, or in connection with, any demand for dowry, then the Court shall presume that such person had caused the ‘dowry death’. The expression ‘soon before’ is relevant for invoking Section 304-B of the Indian Penal Code and Section 113-B of the Evidence Act. There should be a close and perceptible nexus between death and the dowry-related harassment or cruelty inflicted on the deceased. The expression ‘soon before’ is relevant for invoking Section 304-B of the Indian Penal Code and Section 113-B of the Evidence Act. There should be a close and perceptible nexus between death and the dowry-related harassment or cruelty inflicted on the deceased. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not, by virtue of the presumption, he/she shall be presumed to have committed the ‘dowry death’ provided that the other requirements mentioned above like there were such cruelty or harassment in connection with demand of dowry and that the unnatural death has occurred within seven years from the date of marriage are satisfied. In the present case, since admittedly the death of the deceased had taken place within three weeks of marriage, it is to be seen whether the other ingredients of the offence under Section 304-B of the Indian Penal Code are attracted or not. P.W.1 has stated that at the time of marriage, the father of the deceased had given cycle, watch, utensils and other household articles to the accused. He has not stated about any demand made by the appellant. In the cross-examination, he has stated that even though he was meeting the father of the deceased everyday but the later had never disclosed before him about the ill feeling concerning the non-fulfillment of demand of dowry. P.W.2 who is the cousin brother of the deceased has stated that within 21 days of marriage, her deceased sister died and the accused was demanding dowry. However, in the crossexamination, he has stated that he can say about the articles given to the appellant at the time of marriage. A cycle (Hero Jet), Philips Radio, wrist watch and utensils were given to the accused at the time of marriage. A golden necklace and finger ring were also given. He further stated that the father of the deceased had gifted the aforesaid articles voluntarily. Therefore in view of such statement of P.W.2, it cannot be said that the articles which were given to the appellant was on account of any demand. A golden necklace and finger ring were also given. He further stated that the father of the deceased had gifted the aforesaid articles voluntarily. Therefore in view of such statement of P.W.2, it cannot be said that the articles which were given to the appellant was on account of any demand. Coming to the evidence of P.W.3, the informant, he has stated that though at the time of marriage, they proposed to give a Hero Jet cycle to the appellant but at the time of marriage, seeing the Jet cycle, the appellant demanded a Hercules cycle instead of Hero Jet and declined to come to the marriage pandal and with much persuasion by the Bhadraloks, he agreed to come to the marriage pandal. P.W.3 has further stated that the appellant complained that they had given brass ornaments in lieu of gold ornaments and the appellant demanded for a television set and for non-fulfillment of demand of dowry, the appellant subjected the deceased to cruelty. In the cross-examination, he has stated that he has not seen the assault or torture on the deceased and he has never reported about the torture and demand of dowry before the police prior to her death and he has not informed about the matter before any other authority and he has not stated about the torture to the deceased to any of the villagers. No doubt, in ordinary course of nature, P.W.3 would have discussed about such torture or demand of dowry before others but since the time gap was very short, he might be expecting that the situation would change and normalize and reluctant to approach the police as that would have aggravated the situation and therefore he perhaps adopted “wait and watch” method. In the facts situation, merely because P.W.3 had not disclosed about the matter before others including police immediately, his evidence cannot be disbelieved. P.W.3 has categorically stated that the accused was quarreling and assaulting the deceased for the non-fulfillment of dowries and the deceased divulged before him about the assault and torture on her for dowry articles. Nothing substantial has been brought out in the cross-examination to disbelieve the evidence of P.W.3. P.W.3 has categorically stated that the accused was quarreling and assaulting the deceased for the non-fulfillment of dowries and the deceased divulged before him about the assault and torture on her for dowry articles. Nothing substantial has been brought out in the cross-examination to disbelieve the evidence of P.W.3. So far as P.W.4 is concerned, she has stated not only about the demand of dowry by the appellant but also stated that her deceased daughter was regularly coming to the village tank to take water and for bathing where she was meeting her and during such meeting, the deceased use to disclose before her regarding demand of T.V., tape recorder and also torture by the appellant for non-fulfillment of the dowries. Such disclosure made by the deceased before her parents which are the circumstances of the transaction which resulted in her death is admissible under Section 32 of the Evidence Act. P.W.4 was cross examined at length but nothing substantial has been brought out in her cross-examination to disbelieve her testimony. In a case of dowry related torture, the parents or the close relatives of the woman are the best witnesses to depose about the demand of dowry and torture by the in-laws and their evidence cannot be discarded on the ground that they are interested witnesses. Offences of such type are committed within four walls and any information regarding demand of dowry and torture would be known to the parents or close relatives. It is very difficult to get independent witnesses in such cases. Coming to the evidence of P.W.5 Dr. Manorama Satpathy, she found no external or internal injuries present over the dead body but she found the presence of blisters and frothy fluid coming out from the mouth and nose and from larynx and trachea. She opined that the cause of death of the deceased was on account of insecticidal group of poison. The doctor has further stated that though she was confirmed that it was a death due to poisoning but only for further satisfaction, she opined for examination of the viscera. The Investigating Officer made a query to the doctor for clarification regarding the cause of death of the deceased as to whether the poisoning was homicidal or suicidal. The doctor has further stated that though she was confirmed that it was a death due to poisoning but only for further satisfaction, she opined for examination of the viscera. The Investigating Officer made a query to the doctor for clarification regarding the cause of death of the deceased as to whether the poisoning was homicidal or suicidal. Since no external or internal injury was noticed over the dead body, the doctor was of the view that cause of poisoning could not be opined whether it was suicidal or homicidal. The preserved viscera were dispatched to S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination through constable on 18.07.2005 after receiving the same from the office of A.D.M.O., D.H.H., Bolangir but the report was not obtained and produced during trial. Though suggestion was given to the doctor by the defence that the deceased did not die due to poisoning but in view of the clinching evidence on record, there is no doubt that the deceased died due to poisoning. Absence of chemical examination report would not falsify the evidence of P.W.5 that it was a case of poisoning. In case of Bhupendra -Vrs.- State of Madhya Pradesh reported in (2014) 57 Orissa Criminal Reports (SC) 51, it is held that chemical examination of the viscera is not mandatory in every case of a dowry death; even when a viscera report is sought for, its absence is not necessarily fatal to the case of the prosecution when an unnatural death punishable under Section 304-B of the Indian Penal Code or under Section 306 of the Indian Penal Code takes place; in a case of an unnatural death inviting Section 304-B of the Indian Penal Code (read with the presumption under Section 113-B of the Evidence Act, 1872) or Section 306 of the Indian Penal Code (read with the presumption under Section 113-A of the Evidence Act, 1872) as long as there is evidence of poisoning, identification of the poison may not be absolutely necessary. 10. 10. Keeping in view, the ingredients of the offence under Section 304-B of the Indian Penal Code, apart from the fact that the death took place within three weeks of the marriage, there are materials on record particularly that of the parents of the deceased to show that there was demand of dowry and for nonfulfillment of demand of dowry, the deceased was subjected physical and mental torture and the deceased was complaining about such demand as well as torture before her parents. It is also established by the prosecution by way of medical evidence that the deceased died due to poisoning. Therefore in view of the presumption as available under Section 113-B of the Evidence Act, the ingredients of the offence under Section 304-B of the Indian Penal Code is clearly attracted in this case. Accordingly, I am of the view the learned Trial Court was justified in convicting the appellant under Section 304-B of the Indian Penal Code. There are also materials available on record regarding continuous torture on the deceased as well as demand of dowry by the appellant and therefore, the Trial Court has also rightly convicted the appellant under Section 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. 11. In view of what has been discussed above, I find no illegality or infirmity in the impugned judgment and order of conviction of the appellant under Sections 498-A and 304-B of Indian Penal Code read with Section 4 of the Dowry Prohibition Act and since the sentence imposed on the appellant by the learned Trial Court is the minimum sentence i.e. seven years prescribed for the offence under Section 304-B of the Indian Penal Code, I am also not inclined to interfere with the same and accordingly, the same is hereby confirmed. As it appears that the appellant was taken into custody on 21.04.2005 and he was in custody till conclusion of the trial and thereafter also he has not been released on bail during pendency of the appeal. Therefore, he has already undergone the sentence imposed by the learned Trial Court. The appellant be released forthwith from jail custody, if he has not yet been released, if his detention is not otherwise required in any other case. Accordingly, the JCRLA stands dismissed. Therefore, he has already undergone the sentence imposed by the learned Trial Court. The appellant be released forthwith from jail custody, if he has not yet been released, if his detention is not otherwise required in any other case. Accordingly, the JCRLA stands dismissed. Lower Court records with a copy of this judgment be sent down to the learned Trial Court forthwith for information. JCRLA dismissed.